Citation NR: 9715786
Decision Date: 05/06/97 Archive Date: 05/16/97
DOCKET NO. 94-05 361 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
Puerto Rico
THE ISSUE
Entitlement to service connection for post traumatic stress
disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
M. J. Bohanan, Associate Counsel
INTRODUCTION
The appellant served on active duty from May 1966 to May
1968.
This appeal arises from a July 1993, Department of Veterans
Affairs (VARO), San Juan, Puerto Rico rating decision, which
denied the appellant’s claim for entitlement to service
connection for post traumatic stress disorder.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends, in substance, that he did not have
post traumatic stress disorder prior to service, and that he
currently has diagnosed post traumatic stress disorder as the
result of stressors during service. Specifically, he claims
that his son required emergency cardiac surgery following his
birth, and that he was not allowed to return home for his
son’s surgery until the Red Cross intervened.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that the appellant has not met his statutory
duty of submitting evidence sufficient to justify a belief
that his claim for service connection for post traumatic
stress disorder, is well grounded.
FINDINGS OF FACT
1. The appellant served on active duty from May 1966 to May
1968.
2. Competent evidence does not establish that the appellant
currently manifests post traumatic stress disorder which can
be related to his period of service.
CONCLUSION OF LAW
The appellant has not submitted evidence of a well grounded
claim for entitlement to service connection for post traumatic
stress disorder. 38 U.S.C.A. §§ 1110, 5107(a) (West 1991);
38 C.F.R. § 3.304(f) (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The initial question to be answered regarding the issue on
appeal is whether the appellant has presented evidence of a
well grounded claim; that is, a claim which is plausible. If
he has not presented a well grounded claim, his appeal must
fail and there is no duty to assist him further in the
development of his claim because such additional development
would be futile. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v.
Derwinski, 1 Vet.App. 78 (1990). Although the claim need not
be conclusive, it must be accompanied by supporting evidence
sufficient to justify a belief by a fair and impartial
individual that the claim is plausible. Tirpak v. Derwinski,
2 Vet.App. 609 (1992). As will be explained below, it is
found that his claim for entitlement to service connection for
post traumatic stress disorder, is not well grounded.
Under the applicable criteria, service connection may be
granted for a disability the result of disease or injury
incurred in or aggravated by service. 38 U.S.C.A. §§ 1110,
1131 (West 1991).
In order to establish entitlement to service connection for
PTSD, there must be medical evidence establishing a clear
diagnosis of the condition, credible supporting evidence that
the claimed in-service stressor actually occurred, and a link,
established by medical evidence, between current
symptomatology and the claimed in-service stressor. 38 C.F.R.
§ 3.304(f) (1996).
The appellant’s May 1966 to May 1968 DD-214 indicates that he
was not involved in any campaigns or combat and received no
injuries. He was awarded the National Defense Service Medal,
the Vietnam Campaign Medal, and the Marksmanship Badge. He
never received any combat badges. His specialty was as a
lineman.
The appellant’s service medical records are negative for any
treatment or diagnosis of a psychiatric disorder.
VA treatment records following service reported that the
appellant was diagnosed as having post traumatic stress
disorder, and he was referred to the mental health clinic for
evaluation in November 1981. Anxiety neurosis was diagnosed
after he complained of a rash on his face, neck and hand in
May 1985. He complained of difficulty sleeping, depression,
and a lack of interest in daily activities in October 1990 and
December 1990. He continued to complain that he was uneasy,
anxious, and required medication to sleep in January 1991. A
diagnosis of maladaptive coping related to anxiety was
provided in February 1991. A diagnosis of post traumatic
stress disorder was again provided in February 1991, after the
appellant complained of frequent flashbacks regarding war
experiences due to the Persian Gulf War. However, no specific
stressors were reported.
A VA psychiatric examination was conducted in October 1991.
The appellant complained of anxiety, isolation, and aggressive
impulses. He claimed that he spent his entire military duty
in Vietnam in the same completely isolated place. He reported
that he felt like “killing” his commander when he was refused
permission to visit his son following notification that his
son required emergency cardiac surgery. The examiner observed
that the appellant did not show signs or symptoms of a
psychosis. She diagnosed generalized anxiety disorder with
depressive features, and noted that psychosocial stressors
were not specified.
VA treatment records dated from April 1991 to June 1992
reported that the appellant continued to receive treatment for
PTSD symptoms, including insomnia, restlessness, flashbacks,
and anxiety.
A February 1992 statement from the appellant’s private
physician, Ariel Rojas Davis, M.D., reported that the
appellant had been receiving treatment since March 1991 for
his psychiatric complaints, including nightmares about his
experiences in Vietnam, and severe anxiety episodes. Dr.
Davis reported a diagnosis of post traumatic stress disorder.
No specific stressors were indicated.
A VA examination for post traumatic stress disorder was
conducted by a Board of 3 psychiatrists in January 1993. The
appellant reported that he was a communications specialist in
Vietnam. He claimed that the most significant event for him
in Vietnam was the fact that his son was born. He reported
that his son was born with a cardiac condition and required
surgery, and that he was denied permission to be with him
until the Red Cross intervened. He complained of anxiety,
depression, isolation, sleeplessness, and nightmares of
Vietnam experiences. After interviewing the appellant and
reviewing his claims folder, the Board unanimously determined
that the appellant’s neuropsychiatric disorder was best
diagnosed as generalized anxiety disorder with depressive
features, and indicated that psychosocial stressors were not
specified.
According to Cohen v. Brown, Vet.App. No. 94-661 (March 7,
1997), in order for a claim for service connection for PTSD to
be well grounded, the following three requirements must be
met: 1) a clear diagnosis of PTSD; 2) incurrence of a
stressor; and 3) a causal nexus between the symptomatology and
the stressor. A clear diagnosis means an unequivocal
diagnosis of PTSD.
In the instant case, it is found that there is no clear and
unequivocal diagnosis of PTSD in the record. Neither of the
diagnoses of PTSD in the file are unequivocal, as the
examiners did not have access to, or review, the appellant’s
claims folder for verification of any specifically alleged in-
service stressor. In fact, no specific in-service stressor
was indicated. Therefore, neither of the examinations
providing a diagnosis of PTSD were complete and adequate. The
examination by the Board of 3 psychiatrists which provided a
unanimous diagnosis of generalized anxiety disorder with
depressive features, and rejected a diagnosis of PTSD, is the
only examination of record which indicates that a review of
the appellant’s claims file was made. As a consequence, an
unequivocal diagnosis of PTSD has never been established. The
first prong of the test to establish well-groundedness
pursuant to Cohen, supra., has not been met.
Even if the Board conceded a clear and unequivical diagnosis
of PTSD, the record also does not show the incurrence of a
stressor. Initially, it is noted that the veteran was not
engaged in combat. The evidence indicates that his military
occupation was as a communications lineman. He was not
awarded any combat badges. He also claimed that he remained
in the same isolated place during his entire tour in Vietnam.
He never claimed to be in combat, and reported that the most
significant incident which occurred during service was that he
was not immediately sent home to be with his son during his
son’s emergency cardiac surgery. According to Zarycki v.
Brown, 6 Vet.App. 91, 98 (1993), when it has been determined
that a veteran was not engaged in combat, “... the veteran’s
lay testimony, by itself, will not be enough to establish the
occurrence of the alleged stressor.” See also Swann v. Brown,
5 Vet.App. 229 (1993), Wood v. Derwinski, 1 Vet.App. 190
(1991). There is no evidence in the record that the veteran
was exposed to a life-threatening event or situation. As a
result, the second prong of the Cohen test, the incurrence of
a stressor, has not been met.
The third prong of the well-groundedness test requires that
there be a causal nexus between the clearly diagnosed PTSD and
a veteran’s in-service stressor. However, in this case, there
is no unequivocal diagnosis of PTSD and no evidence of a
corroborated stressor. Therefore, the question of whether
there is a causal nexus is moot.
The United States Court of Veterans Appeals has stated that,
in order for a claim for service connection to be well
grounded, there must be competent medical evidence of the
existence or diagnosis of a current disorder that can be
linked to the period of service. Grivois v. Brown, 6 Vet.App.
136 (1994); Grottveit v. Brown, 5 Vet.App. 91 (1993); Rabideau
v. Derwinski, 2 Vet.App. 141 (1992). As noted above, there is
no competent medical evidence that the appellant manifests
PTSD that can be linked to his period of service.
Where claims are not well grounded VA may be obligated under
38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed
to complete his application. This obligation depends upon the
particular facts of the case and the extent to which the
Secretary of the Department of Veterans Affairs has advised
the claimant of the evidence necessary to be submitted with a
VA benefits claim. Robinette v. Brown, 8 Vet.App. 69 (1995).
In this case, VARO fulfilled its obligation under section
5103(a) in its Statement and Supplemental Statements of the
Case, in which the appellant was informed that the reason for
the denial of his claim was that there was no clear diagnosis
of PTSD. Additionally, by this decision, the Board is
informing the appellant of what is necessary to make his claim
well grounded.
ORDER
Having found the claim for entitlement to service connection
for post traumatic stress disorder not well grounded, the
appeal is denied.
C. P. RUSSELL
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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